Controlling the Common Law: A Comparative Analysis of No-Citation Rules and Publication Practices in England and the United States

Abstract

England and America have taken divergent approaches to publication practices and no-citation rules. The English rules limit the right of lawyers to cite unreported judgments and are a sharp break with centuries of tradition. The American rule freely permits citation to unpublished opinions in the federal courts. A historical introduction to publication and citation practices in both countries establishes the context for this comparison. Efficiency arguments asserting that no-citation rules save judges and lawyers time and clients money were advanced in both jurisdictions. This article explores why efficiency arguments were the basis for the adoption of the English rules but were advanced, studied and rejected in America. Policy concerns over no-citation rules’ impact on transparency, accountability and freedom of expression were raised in American but not in England. Distinctions between the oral and written traditions, unique traits of each countries judiciary and different substantive rights explain the varying levels of concern over these policy issues. The article concludes with a prediction of the impact no-citation rules will have on the future of the common law through an examination of the precedential value of unreported and unpublished cases, the judiciaries’ role in controlling the growth of the common law, jurisprudential theories and the enforcement of the rules.